Saji Koduvath.

Introduction.  

Sec. 65A and 65B of the Evidence Act are the new enabling provisions introduced to confer a right to a party who wishes to rely upon the contents of an ‘electronic record’ by ‘computer output’ (copy or print – derived from original), adopting the procedure/drill given in Sec. 65B ‘without further proof or production of the original’; that is, without accounting for (original) ‘electronic record’. It is to simplify the proceedings and procedures.

Landmark Decisions

1. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,  two- judge bench decision. It is held:
   • “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is 26 not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
2. Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision. It is held:
   • “That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
   • But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”
3. Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.
   • It is held, as to make CCTV footage admissible, as under:
     • “Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
4. Sonu v. State of Haryana (2017-8 SCC 570) two- judge bench decision. It is held:
   • “The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
5. Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ) two- judge bench decision. Tomaso Bruno (2015) was followed in. It was held as under:
   • “(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
   • (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
6. Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision. It substantially followed PV Anwar (2014) with a ‘clarification’.
   • Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’  ”.
   • In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
     • “What is clear from this judgment is that the judgment of Anvar P.V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P.V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P.V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

ARJUN PANDITRAO v. KAILASH KUSHANRAO (2020)3 SCC 216, CRITICISED: 

1. Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216, is per incurium as it went wrong in observing:
   • that ‘the certificate required under Section 65B(4) is a condition precedent to the admissibility’ of ‘computer output’ (secondary evidence);
   • that by virtue of the non-obstante clause (‘Notwithstanding anything contained in the Act .. .. the computer output shall be deemed to be ALSO a document’) Sections 63 and 65 of the Evidence Act cannot at all be adverted to in proving a computer output (secondary evidence); and
   • that Section 65B being a special law, the general law under Sections 63 and 65 has to yield; and therefore, the computer outputs (secondary evidence) cannot be proved under Sec. 65 read with Sec. 63 of the Evidence Act.
2. It failed to observe:
   • that “Electronic record containing the statement“ alone can be proved with Sec. 65B(4) Certificate (statement is confined to the matters that can be made in a written form: e.g. call-records of phones, bank-account-statements); and not all information (such as: photo, video etc. in a computer, pen-drive or CD etc.).
   • The non-obstante clause is for enabling admission of ‘computer output’ (derived from original) in evidence, as (original) ‘document’ itself (“the computer output shall be deemed to be ALSO a document”), in a simpler manner,  ‘notwithstanding anything contained in the Act’.
3. It should have noticed:
   • only formal evidence and admissibility (and not truth of contents) are dealt with in Sec. 65B; and
   • correctness of the computer output produced by a computer (print out or other copy), is presumed under Sec. 65B(5)(c).
4. It was thoroughly mistaken in holding:
   • that a certificate, swearing ‘best of the knowledge and belief’, can be brought by ‘force’ (as a ‘thing’).
5. It missed to see:
   • that the changes made to law by the introduction of Sec. 65A and 65B are:
     1. simplification of procedure for proving electronic record (‘Notwithstanding anything contained in the Act) by producing a copy (computer output) by declaring the copy also as a (deemed) document – if the conditions are satisfied.
     2. “where it is desired to give a statement in evidence” it can be had by “a certificate” as provided in Sec. 65B(4).
     3. the computer output (print or copy) can be tendered in evidence without evidence as to the computer which (finally) produced it – for, it will be presumed (shall be taken) “to have been produced by a computer … by means of any appropriate equipment”, as per Sec. 65B(5)(c).

Observations in   Arjun Panditrao v. Kailash Kushanrao	Criticism
1. Non-obstante clause is given in Sec. 63B – because, ‘Electronic Record’ is not a ‘document’. Arjun Panditrao v. Kailash Kushanrao, para 21 reads as under:	1. ‘Electronic records’ are already declared as ‘documents’(When defined ‘Evidence’ in S. 3 ). Section 65B (1) needed to declare ‘computer output’ (derived from original) alone as documents.
“Section 65B(1) opens with a non-obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that “document” as defined by Section 3 of the Evidence Act does not include electronic records.”	The deeming fiction in S. 65B (1), need not be applied to an ‘electronic record’ (primary evidence). The principles of ‘presumption’ are introduced herein.  It is needed only for the ‘computer output’; and not for ‘electronic record’. The doubt as to whether electronic – records are also ‘documents’ is already removed by the amendment to Sec. 3 Evd. Act. (‘Evidence’ means and includes … .. all documents including electronic records’.) Sec. 65A and 65B do not bar proving (i) (original) ‘electronic records’ under Sec. 62 and (ii) computer outputs (derived from original ) under Sec. 65. (Sec. 65 provides for adducing secondary evidence if the original is lost, not easily movable etc.)
2. Non-obstante clause (‘notwithstanding anything …’) excludes S. 62 and 65. It is observed in para 31:	2. Non-obstante clause does not exclude Sec. 62 and 65 –
“The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained  in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose.”   Para 59: “We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra).”	The non-obstante clause is for enabling admission of ‘computer output’  (derived from original)  as ‘document’ itself, in a simpler manner, by the deeming provision ‘notwithstanding anything contained in the Act’. The non-obstante clause is an enabling provision. (See ‘Note’ – 1 below.)
3. Production of Certificate  under Sec. 65B(4):	3. A certificate cannot be ordered to be given as a ‘thing’:
In Arjun Panditrao para 50 it is observed as under: “However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/ persons referred to in Section 65B(4) of the Evidence  Act, and require that such  certificate be given by such person/ persons.” Arjun Panditrao directs  to seek help of the court to obtain the required certificate under S. 65B(4) invoking Sec. 165, Evidence Act; Order XVI, CPC or Ss. 91 & 349 of the Cr.P.C.	This certificate ‘to the best of the knowledge and belief’ of a person, is based on his ‘subjective-satisfaction’. It cannot be ordered to be given as a ‘thing’ under S. 165 and Ss. 91 & 349 Cr.P.C. (Order XVI  Rule 6, CPC says as to document alone; not any ‘thing’.)  A certificate, swearing ‘best of the knowledge and (or?) belief’, cannot be brought by ‘force’ also. (See ‘Note’ – 2 below.)
4. Tomaso Bruno was held to be ‘per incurium‘:	4. Should have been referred to a higher bench.
PV Anwar (2014-10 SCC 473), three-judge bench decision, was not followed in the three-judge bench decision in Tomaso Bruno (2015-7 SCC 178). Tomaso Bruno (2015) was followed in Shafhi Muhammed (2018-2 SCC 801 ). Arjun Panditrao substantially followed PV Anwar (2014).	It was observed in Arjun Panditrao (3-judge bench) that Tomaso Bruno was per incurium (3-judge bench).  Tomaso Bruno being of a 3-judge bench, the case should have been referred to a higher bench.   [PV Anwar (2014) was rendered by Kurian Joseph, J.  He was a judge in the unanimous 3-bench decision in Tomaso Bruno (2015) which was ‘followed’ in Shafhi Muhammed (2018) ].

‘Note: 1’:  Why the Non-obstante Clause

Sec. 65B speaks: ‘Notwithstanding anything contained in the Act .. .. the computer output shall be deemed to be ALSO a document’ (if the conditions laid down are fulfilled). It is clear:

• Sec. 65B is an enabling provision. The non-obstante clause is introduced not to exclude Sec. 62 and 65.  (Contra view in Arjun Panditrao).
• It declares ‘computer output’ (derived from original or copy) ALSO as an (original) document by the deeming provision.
• Section 65A and 65B deal with evidence ‘derived from original’ (computer output) alone; and not about original (electronic record).
• From Sec. 65A and 65B it is clear that its application is ‘notwithstanding anything contained in the Act’, and the application of Sec. 62 to 65 are not curtailed; and, therefore, copy or computer outputs (derived from original ) can be used under Sec. 65 (Sec. 65 provides for adducing secondary evidence if the original is lost, not easily movable etc.); that is, otherwise than by producing the ‘Certificate’ under Sec. 65B(4).

It is correctly held in State (NCT of Delhi) v. Navjot Sandhu,  (2005) 11 SCC 600, as under:

• “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65.

Sec. 65A and 65B do not bar proving (i) (original) ‘electronic records’ under Sec. 62 and (ii) computer outputs (derived from original ) under Sec. 65 (Sec. 65 provides for adducing secondary evidence if the original is lost, not easily movable etc.).  From Sec. 65A and 65B it is clear that Sec. 62 to 65 are independent from Sec. 65B (‘notwithstanding anything contained in the Act’); and, therefore,

• Sec. 62 to 65 can also be invoked to prove ‘computer output’ (secondary evidence of the ‘electronic record’). That is, otherwise than by producing the Certificate under Sec. 65B(4). (Contra view in Arjun Panditrao).

‘Note: 2’: Assume, the competent person gives a ‘statement’ that he cannot vouchsafe as to the truth and veracity of the document, then what will be the next step? Or, what will be the position if that person gives a false statement with respect to the document (though he knows it to be true and genuine)? Further, if the circumstances or admission by the parties show it is a genuine copy and the competent person pretends ignorance as to the truth of the document, how it will be dealt with?

• In all these circumstances, the ultimate way-out is to apply the principle accepted by by Tomaso Bruno v. State of UP (and followed in Shafhi Muhammed – the overruled decision).

Does the duo by Sec. 65A & 65B Evid. Act Oust the Operation of Sec. 63 & 65?

• That is, whether ‘computer output’ (secondary evidence of the ‘ electronic record’) can be proved only by Sec. 65B and it Constitute a ‘Complete Code’?

The Answer is No.

Then, what does the non-obstante clause (‘Notwithstanding anything’) denote? It is clear that Sec.62 to 65 are independent from the new provisions, Sec. 65A and 65B; and Sec. 62 to 65 can also be invoked to prove ‘computer output’ (secondary evidence of the ‘electronic record’). It is definite that the non-obstante clause (‘Notwithstanding anything contained in the Act .. .. ’) in Sec. 65B does not oust Sections 63 and 65 of the Evidence Act in proving a computer output (secondary evidence). Because:

1. Sec. 65A is an introductory provision to Sec. 65B.
2. Sec. 65A does not control Sec. 65B.
3. Sec. 65A directs only an (enabling) method to PROVE (not the only one method) the CONTENTS of electronic records –  by print/copy – invoking Sec. 65B.
   • (Sec. 65A reads: The contents of electronic records may be proved in accordance with the provisions of section 65B.) 
   • Thus, Sec. 65B is an Enabling or Added provision; and, other enabling (existing) provisions in the Indian Evidence Act, to prove documents by secondary evidence invoking Sec. 63 and 65, are not taken away.
4. Sec. 65B(1), further lays down that the computer output (copy) shall be “deemed to be ALSO” an (original) document, if the conditions in Sec. 65B(2) are satisfied, “notwithstanding anything contained in the Act”.
   • That is, Sec. 65B, does not bar proving a print/copy (as secondary evidence) by satisfying the conditions laid down in Sec. 65, by oral evidence or affidavit, as to loss of original, original with other side and notice given, original not easily movable, etc., as the case may be.
5. Sec. 65B deals with ‘ADMISSIBILITY’ of ‘computer output’ (derived from original) alone. 
6. The conditions in Sec. 65B(2) (such as: computer was used regularly and operating properly, information was regularly fed into in the ordinary course, etc.) have to be satisfied by oral evidence or affidavit. In case of ‘statements’ alone, it can be had by the ‘certificate’ provided under Sec. 65B(4).

In short, compliance of this enabling provision is not an invariable or imperative condition precedent to the admissibility’ of ‘computer output’ (secondary evidence); and it does not stand in the way of proving a secondary evidence of the contents of the ‘electronic record’, invoking the usual method laid down in Sec. 65 read with Sec. 63 of the Evidence Act – that is, satisfying the conditions laid down in Sec. 65, by oral evidence or affidavit. (Note: Contra view in: Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216).

‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B

• Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not authenticity. Sec. 65B(4) alone deals with authenticity; because, it is laid down that the certificate “shall be evidence of any(?) matter stated” therein.

Sec. 65B(4) reads as under:

“(4) In any proceedings where

it is desired to give a statement  

in evidence, by virtue of this section,

a certificate doing any of the

following things, that is to say,—

• (a) identifying the electronic record CONTAINING the STATEMENT and describing the manner in which it was produced;
• (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
• (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate;
• and for the purposes of this sub-section

it shall be sufficient

for a matter to be stated to the

best of the knowledge and belief

f the person stating it.”

What is a “Statement” in Evidence Act?

According to Evidence Act, ‘statement’ is – that which can be expressed in the form of ‘oral evidence’. Because, “Evidence” is defined in Sec. 3 of the Evidence Act as under:

• “Evidence means and includes—
  • all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.
  • all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.”
• See also: Sec. 8
  • Explanation 1.––The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
  • Explanation 2.––When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
• Section–32
  • Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
• Section–. 34
  • Entries in books of account when relevant. …. but such statements shall not alone be sufficient evidence to charge any person with liability
• Section–. 36
  • Relevancy of statements in maps, charts and plans.
• Section–. 32
  • Relevancy of statement as to fact of public nature contained in certain Acts or notifications.
• Section–. 37
  • Relevancy of statements as to any law contained in law-books.
• Section–. 38
  • What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.
• Section–. 39
  • What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.
• Section–. 145
  • Cross-examination as to previous statements in writing
• Section–. 157
  • Former statements of witness may be proved to corroborate later testimony as to same fact
• Section–. 158
  • What matters may be proved in connection with proved statement relevant under section 32 or 33.

Thus it appears that the call-records of phones, bank-account-statements etc. alone can be proved as ‘statements’. The ‘statement’ referred to herein is that which can be pointed out “identifying the electronic record containing the statement and describing the manner in which it was produced” as stated in Section 65B(4)(a); and which can be ‘purporting to be signed‘, as stated in Section 65B(4)(c). And, it is clear that the ‘statement’ does not pertain to other ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD. (Note – contra view in Supreme Court decisions).

See Blog: How to Prove WhatsApp Chats, Facebook Messages and Website Information in Courts?

‘Statement‘ in S. 65B(4) is the ‘STATEMENT ‘CONTAINED‘ IN THE ELECTRONIC RECORD‘and NOT that GIVEN IN COURT

Now, the potential question that arises for consideration is the following:

• Whether the ‘statement’ mentioned in Sec. 65B(4) is
  • (i) that given in court, to support the copy or printout, or
  • (ii) that is contained in the electronic record?

It is beyond doubt that the ‘statement’ mentioned in Sec. 65B(4) is not the one that is given in court; but, the statement ‘CONTAINED‘ in “the electronic record“. Because:

1. The “statement” referred to in Sec. 65B (4) is one that-
   • may be:
     • “desired to give” “in evidence by virtue of this section” (Sec. 65B(4) first clause); and
2. The “certificate”-
   • must be one that
     • “identifying the ELECTRONIC RECORD CONTAINING THE STATEMENT and describing the manner in which it was produced” [Section 65B(4)(a)].

The above view is fortified by the following:

• Sec. 65B(4) says that the certificate
  1. must state, under Sec. 65B(4)(c), among other things, facts as to “dealing with any of the matters to which the conditions mentioned in sub-section (2) relate”
     • Note: Proving matter with ’certificate’ under Sec. 65B(4) is a species and proving the conditions laid down in Sec. 65B(2) is genus.
  2. could be signed by a person who has
     • “a responsible official position in relation to the operation of the relevant device or the management of the relevant activities” (Section 65B(4)(c).

Thus, the formal assertions like statements of witnesses, call-records of phones, bank-account-statements, etc. alone can be proved as ‘statements’, by virtue of section 65B; and not ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD.

In short, going by Sec. 65B, it is definite that-

• the computer-output (copy) containing the ‘information’ (e.g. CCTV Footage, photo or video in a CD) in the electronic-record (original) can be admitted in evidence, under Sec. 65B, if only the conditions (such as: the computer was operating properly, the electronic record is derived from such information fed into the computer in the ordinary course of the activities, etc.) mentioned in Sec. 65B(2) are satisfied (that is, the conditions are to be proved through the usual mode of oral evidence or affidavit); and
• the ‘statements’ (e.g. call-records of phones, bank-account-statements) alone can be admitted in evidence, under Sec. 65B (by computer-output, without further proof or production of the original electronic-record), through a ‘certificate‘ (Note – Contra view in Court decisions. In the binding Court decisions it is stated that sans the Certificate, no computer-output can be taken into consideration).

Photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc. cannot be used under Sec. 65B.

• It is clear that the computer output (copy) is ‘deemed to be (also) a document’ if only the conditions mentioned in S. 65B(2) are fulfilled, that is:
  • S. 65B(2)(a) computer was USED REGULARLY to STORE or process information
    • of the activities REGULARLY CARRIED ON
    • BY THE PERSON having lawful control,
  • S. 65B(2)(b) information was REGULARLY FED
    • in the ORDINARY COURSE,
  • S. 65B(2)(d) the information is REPRODUCED in the
    • ORDINARY COURSE of the SAID ACTIVITIES.
  • (For example – Computer Account statements in a Bank.)
• For all other computer outputs (copy of, photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc.), one has to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65.
  • See Blog: Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Therefore, it is beyond any doubt that the following computer output (copy) cannot be used under Sec. 65B:
  • CCTV footage – (i) not used to store or process information BY any PERSON and (ii) not reproduced in the ordinary course.
  • CDs containing speech – (i) not used REGULARLY to store or process information, (ii) not regularly fed in the ordinary course and (iii) not reproduced in the ordinary course.
  • videograph of the scene of crime or trap-video – (i) not used REGULARLY to store or process information, (ii) not regularly fed in the ordinary course and (iii) not reproduced in the ordinary course.

• But, the Supreme Court dealt with CCTV footage in the following landmark cases:
  • State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,
  • Tomaso Bruno v. State of UP, (2015-7 SCC 178),
• CDs/VCDs in respect of video recording by the Election Commission
  • Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216
• CDs containing election speeches and songs in:
  • Anvar PV v. PK Basheer, (2014-10 SCC 473).
• Call Detail Records – CDR – of mobile phones in:
  • Sonu v. State of Haryana (2017-8 SCC 570)
• Tape recorded conversation on the landline phone
  • Vikram Singh v. State of Punjab, (2017) 8 SCC 518
• Propriety of videography of the scene of crime or scene of recovery during investigation, in:
  • Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ).

‘Computer output’ can be got produced by ‘any computer‘ and no evidence/certificate required

A ‘Computer Output’ can be got copied or printed by ‘any computer’. It need not be the part of the device that was “used regularly to store or process information”. It is clear from the phrase – shall be taken to have been produced by “a computer” – in 65B(5)(c). It stands contradistinct to “the computer” in Sec. 65B(2).

Presumption on ‘Computer output’ (print or copy)

From the very wordings in Sec. 65B(5)(c), the ‘proof’ (through witnesses or certificate) as to the involvement of the computer which (finally) produced the computer output (print or copy) need not be furnished. Because, the legislature contemplated a presumption as to correctness of the computer output (not truth of contents), under Sec. 65B(5)(c), as it reads:

• ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.

It is similar to Sec. 63 clause (2) which reads as under:

• “Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy …. …”

Sec. 63 lays down the sorts of secondary evidence accepted by the Evidence Act. It is seen that Sec. 65B(5)(c) expressly says also as to presumption on correctness, as stated above.

Mere marking– not dispense with proof (of truth of contents)

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of a documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses does not prove contents of a document.

In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:

• “Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India  Vs. Rampal Singh Bisen,2010-4 SCC 491).”
• “The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
• [Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

IF the TRUTH is IN ISSUE mere proof of handwriting or execution not evidence of truth:   IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.

In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:

• “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88,  2012(1) CTC 53; 2013-1 KLT 293.)

• Mere marking– not dispense with proof (of truth of contents): See Blog: EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Admissibility and Presumption as to correctness of Computer Output

• Sec. 65B does not deal with ‘truth’ of the contents of the electronic record; it deals with only ‘admissibility of copy’.
• The electronic record mentioned in Sec. 65B is – that is ‘relevant‘; for, it must be one “of which direct evidence would be admissible”.
• Therefore, if truth is in question, it must be proved according to other provisions of the evidence act; ie. by oral, documentary (such as admission) or presumptive (including circumstantial) evidence.
  • See Blog: Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevant portions of 65A & 65B read as under:
  • Sec. 65A: Special provisions as to evidence relating to electronic record:
    • The contents of electronic records MAY BE proved in accordance with the provisions of section 65B. 
  • Sec. 65B: Admissibility of electronic records:
    • (1) … any information contained in an electronic record which is printed ….. or copied ….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”

Sec. 65B declares and expressly lays down that computer output (copy or print)

• (i) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and
• (ii) shall be admissible in any proceedings, without further proof or production of the original, as evidence
  • of any contents of the original or
  • of any fact stated therein of which direct evidence would be admissible.

If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary implication, it will bring a presumption under Sec. 114 with respect to regularity of the computer output . Because, admissibility of ‘any fact stated therein‘ ‘without further proof’ is nothing but ‘presumption’ of its regularity and correctness. The net result is that (if the conditions in Sec. 65B(2) are satisfied) the burden to prove otherwise is cast on the person who opposes it.

The requirement in Sec. 65B(2) as to ‘proof’ (through witnesses or certificate) for ‘regularity‘ of feeding information into the computer in the ‘ordinary course‘ eloquently support this proposition.

• Note:
  • (i) ‘Statements’ alone can be proved by ‘certificate’ under Sec. 65B(4); other ‘information’ are to be proved by proper evidence.
  • (ii) Presumption of ‘regularity’ under Sec. 114 Evd. Act can be applied in Sec. 65B.
  • (iii) Presumption of a ‘fact or regularity’ under Sec. 114 Evd. Act is, essentially presumption of ‘Truth’ and ‘Correctness’.

Presumption of Fact Means Truth/Correctness of Fact

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

• “Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

Substance and Conclusion

1. Sec. 65B is invoked only when a computer output (copy) is used in evidence.
   • Sec. 65B pertains to ‘admissibility'(not truth) of a computer output/copy.
   • It deals with computer output/copy alone; and it does not deal with (original) electronic record.
2. Non-obstante clause does not oust S. 63 and 65.
   • The non-obstante clause in Sec. 65B does not oust operation of Secs. 63 & 65 of the Evidence Act; and, therefore, secondary evidence of an electronic record can be given in evidence, invoking Sec. 65, read with Sec. 63.
   • Sec. 65B is an added and enabling provision to prove the copy or print out (otherwise than by proving the conditions laid down in Sec. 65, such as loss of original, original with other side).
   • It relates to relevant matters alone “of which direct evidence would be admissible”.
3. Conditions in S. 65B(2) are to be satisfied through oral evidence or affidavit.
   • The computer output (copy) containing the information, such as CCTV footage, photo or video in a CD etc., can be admitted in evidence under S. 65B if only the conditions (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly) mentioned in S. 65B(2) are satisfied, through oral evidence or affidavit.
   • A computer output (copy) cannot be used under Sec. 65B if the computer was one not used regularly, or the information was one not ‘regularly fed’ into the computer in the ordinary course, etc., (as in the case of a photo or video captured in a mobile phone; ‘trap-video’, etc.).
   • In such a case (photo or video captured in a mobile phone; ‘trap-video’, etc.), we have to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65; because, if only the conditions (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly)  mentioned in S. 65B(2) are fulfilled, then only the computer output (copy) is ‘deemed to be (also) a document’.
4. Statements alone can be proved by ‘certificate’ under S. 65B(4).
   • The statements (such as e-mail, call records of phones, bank account statements, etc.) alone can be admitted in evidence under S. 65B, through a ‘certificate’ provided under S. 65B(4). 
   • Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not authenticity. Sec. 65B(4) alone deals with authenticity; because, it is laid down that the certificate “shall be evidence of any(?) matter stated” therein.
5. Presumption as to correctness of the copy or print-out ‘produced by a computer’ under S. 65B(5)(c). 
   • S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put, inasmuch as S. 65B(5)(c) lays down that ‘a computer out-put shall be taken to have been produced by a computer’. 

As shown by Justice V. Ramasubramanian in Arjun Panditrao v. Kailash Kushanrao, Sec. 65B is a substantial reproduction of Sec. 5 of the UK Civil Evidence Act, 1968, and that it is introduced in India 10 years after it was repealed in UK. No doubt, it will stand as a masterly provision, if it aids simplification of procedure and leads to attain ends of justice. Even if any deflection in any corner, the judicial wisdom of the Apex Court will guide the courts in India through correct path.

The present UK Act (Civil Evidence Act 1995) does not make any special provision for Electronic Evidence or Computerised Records. It deals this matter under the head ‘hearsay evidence’ and makes ‘safeguards’ with respect to the hearsay evidence.

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End Notes – 1

What is ‘certificate’, in law

• The usual method to prove documents is by giving oral evidence or furnishing affidavit. A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)
• Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

End Notes – 2

Landmark Decisions

1. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,  two- judge bench decision. It is held:
   • “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is 26 not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
2. Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision. It is held:
   • “That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
   • But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
3. Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.
   • It is held, as to make CCTV footage admissible, as under:
   • “Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
4. Sonu v. State of Haryana (2017-8 SCC 570): two- judge bench decision. It is held:
   • “The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
5. Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ), two- judge bench decision. Tomaso Bruno (2015) was followed in. It was held as under:
   • “(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
   • (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
6. Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision. It substantially followed PV Anwar (2014) with a ‘clarification’.
   • Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’  ”.
   • In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
   • “What is clear from this judgment (Tomaso Bruno) is that the judgment of Anvar P. V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P. V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P. V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

End Notes – 3

Sec. 65A and Sec. 65B of the Evidence Act reads:

Sec. 65A: Special provisions as to evidence relating to electronic record:

The CONTENTS of electronic records may be PROVED in accordance with the provisions of section 65B. 

65B. Admissibility of electronic records

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

• (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
• (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
• (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
• (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

• (a) by a combination of computers operating over that period; or
• (b) by different computers operating in succession over that period; or
• (c) by different combinations of computers operating in succession over that period; or
• (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

• (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
• (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
• (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

• (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
• (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
• (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.